Protecting Our State Courts to Fight Gerrymandering

In last Thursday’s Rucho v. Common Cause, the US Supreme Court held that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” While much of the media coverage has rightly pointed to the Court’s abdication of federal judicial responsibility on the matter, it is important to remember that one judicial venue remains for redistricting cases: state courts.

In fact, the majority opinion noted: “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.” This underscores the critical importance of protecting the independence, integrity and overall fairness of state court systems, especially state supreme courts.

Consider the following states, discussed in the ruling:

Pennsylvania is one of 26 states that has a constitutional clause that affirms “free and equal elections” or “free and open elections” (or similar language). This language is important in the battle for fair districts and served as a basis for the Pennsylvania Supreme Court’s 2018 ruling on redistricting. It is important to remember, however, that following the ruling, members of the legislature initially refused to comply with an order to hand over maps, and bills were even filed to impeach some of the justices as a direct reprisal just because the state house disagreed with the ruling. Piper and our allies immediately responded, drawing attention to the threat to the state’s separation of powers and its dire consequences for long-term judicial independence. In the end, the legislature complied with the ruling and the judges were not impeached.

The Rucho v. Common Cause ruling also pointed towards Florida—the only state with language specifically geared towards redistricting in its constitution that prohibits maps from being “drawn with the intent to favor or disfavor a party or incumbent.” (Article 3, Section 20 (a)). In fact, in League of Women Voters v. Detzner, the Florida Supreme Court determined the maps were the product of unconstitutional political gerrymandering. During the special session to redraw the map, some members of the legislature called out the need for court “reforms”, which would have diluted the power of the state judiciary. Piper’s grantees Progress Florida, SAVE, and Mi Familia Vota-FL are all actively working on improving Florida’s judicial selection system to insulate the courts from partisan attacks.

In Michigan, a court ruling against extreme gerrymandering pointed to a constitutional amendment approved by Michigan voters in November 2018 that created multimember commissions “responsible in whole or in part for creating and approving district maps for congressional and state legislative districts.” While this decision is cause for celebration, the opinion failed to mention that having the question on the ballot in Michigan was itself challenged in state court. And, when the Michigan Supreme Court ruled that the question could be on the ballot, its members were attacked. As noted in this Brennan Center blog post, “… a prominent Republican threatened the party would withdraw support for [Justice ] Clement, herself a Republican, if she voted against the party’s interests in a case about a redistricting ballot measure. After Clement voted against the party’s interests, party members distributed flyers opposing her at the party convention, where she was endorsed over a chorus of boos and omitted her name from campaign materials.” Despite those attacks, Clement retained her seat.

North Carolina is one of the states that brought the Rucho case forward. It also has experienced relentless attacks against judicial independence. Piper grantee, North Carolina Voters for Clean Elections, issued this statement about the ruling:

“This case signals why state courts are so important. North Carolina fought to protect state courts from the same special interest and big-money that long ago captured Washington DC and many state legislatures. There is still hope in North Carolina because of the investment and broad bipartisan campaign to protect judicial independence from a devious plot to hack, crack and pack North Carolina’s state courts in preparation for 2021 redistricting lawsuits and cementing power for another decade.”

All of these cases illustrate that in order to have fair, truly representative districts, we must have fair courts. Unfortunately, with the US Supreme Court abandoning its oversight of political gerrymandering to state supreme courts, we are certain that there will be an escalation of attacks against entire courts and individual justices, similar to the examples above.

Piper and its allies have been engaged in responding to similar attacks and pushing for proactive reforms to insulate the courts from being politicized or controlled by moneyed interests. In fact, just two weeks ago, we brought together nearly 80 leaders from over 20 states to highlight the attacks against the courts and to discuss strategies to push for proactive reform. Additionally, through scenarios, we highlighted the connections between issues—including redistricting—and judicial independence.

Finally, the Rucho ruling itself is a call to action and one that we know many funders and advocates are already engaged in. If you are actively funding redistricting reform or judicial independence, your support is making a critical difference. If you can consider funding this area or are interested in collaborating with Piper around our work to protect the courts, please reach out to me, Kathy, or to our Program Director Melissa Spatz; we all need to work together toward the shared goal of creating a healthy democracy that works for all.